Dunn Packing Co.

DUNN PACKING COMPANY 1149 men, Perf-A-Tape machinemen, and all other supervisors as defined by the Act, con- stitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac- tices proscribed by Section 8(a)(1) of the Act. 5. By refusing to bargain with the Union on September 24, 1960, and thereafter, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8 (a)(5) and (1). 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Dunn Packing Company and United Packinghouse, Food and Allied Workers, AFL-CIO. Case No. 17-CA-2090. August 2, 1963 DECISION AND ORDER On May 14, 1963, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in certain unfair labor practices and recommending that the complaint be dis- missed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, and the excep- tions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon an original charge filed on December 19, 1962 , and an amended charge filed on January 31 , 1963, by the above-named labor organization, the General Coun- sel of the National Labor Relations Board issued his complaint and notice of hearing also on January 31, 1963. The Respondent thereafter filed its answer. The com- plaint alleges and the answer denies that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended . Pursuant to notice , a hearing was held before Trial Examiner C. W. Whittemore in Wichita, Kansas, on April 8, 1963. 143 NLRB No. 109. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally and to file briefs. Briefs have been received from General Counsel and the Respondent. Disposition of the Respondent's motion to dismiss the complaint , upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made , and from his observation of witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dunn Packing Company has its office and place of business in Wichita, Kansas, where it is engaged in the operation of a meat processing and packing plant. It annually makes and distributes products valued at more than $250,000. During 1962 it sold such products to the Excel Packing Company and the Fleming Company, both of Wichita, Kansas. During the same period each of the latter named companies made sales and deliveries of meat and meat products valued at more than $50,000 directly to customers located in States other than the State of Kansas The complaint alleges, the answer admits , and it is here found that the Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION United Packinghouse , Food and Allied Workers, AFL-CIO, is a labor organiza- tion admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and issues Early in the hearing the parties stipulated that the following background events occurred- (1) The Charging Union was first certified by the Board on February 20, 1960, as the exclusive bargaining representative of the Respondent's employees in an appro- priate unit. (2) Union and company representatives began negotiations seeking a contract in the spring of 1960, the Union submitting a proposed contract to the company nego- tiators. A number of provisions in the proposal were agreed upon , others were not. No agreement was reached on "economic " matters. (3) Negotiations continued on an "intermittent " basis until February 1961 (4) On February 15, 1961 , the Union filed with the Board a charge alleging that the Company had violated Section 8(a)(5) of the Act. (5) In March 1961 the Regional Director for the Seventeenth Region dismissed the charge. (6) Negotiations were resumed. Attorney Banowetz at this point first appeared as the employer's representative in negotiations. (7) Banowetz submitted a contract counterproposal . Bargaining continued on an "intermittent" basis until the fall of 1961 when an "impasse " was reached and meetings ceased. (8) Early in 1962 employees filed a decertification petition with the Board. The Regional Office conducted an election on May 21 , 1962. As a result of the election the Union was again certified on May 29, 1962. The complaint alleges and the answer denies that "commencing on or about June 6, 1962," and at all times since then the Respondent "has failed and refused" to "nego- tiate and discuss in good faith " with the Union on bargainable matters. This is the chief issue of the case. The single collateral issue is the claim that Plant Manager Taylor , in January 1963, promised employees benefits if "they would get the Union decertified " B. Facts relevant to the refusal to bargain issue Credible testimony or documents in evidence establish the following pertinent facts: (1) On June 6, 1962, Director Thomas of the Union's District 5 sent Plant Man- ager Taylor a letter reading in part: We are prepared to meet with you at your earliest convenience for the purpose of negotiating a contract . Please notify us immediately as to the date DUNN PACKING COMPANY 1151 and place of meeting, we are hopeful that a contract can be consummated at an early date. (2) On June 21 Attorney Banowetz replied, in part, as follows: Dunn Packing Company met with representatives of your union for approxi- mately 2 years. During that time certain areas of agreement were reached. However, in other areas, and in particular economic areas, there was no agreement. At our meetings in July, August and October, we advised your representatives insofar as these areas were concerned, the Company would make no further concessions and an impasse was reached. The position of the Company remains unchanged. (3) So far as the record shows no union representative made effort to com- municate with any company representative after June 6 until the last of August or early in September. At that time Arnold Edgmon, an employee at another local packing plant and an executive board member of District 5, who had participated in some of the 1961 negotiations, telephoned to Banowetz and asked him to set an early date for negotiations. (4) Banowetz told him that he could not then set a date but would write him a letter and let him know. (5) According to the attorney's testimony he was so busy on other matters (there is no challenge of his statement that during the preceding month he had been hospitalized and was recuperating from an operation) that he forgot to write the letter he had promised Edgmon. (6) According to Edgmon he again called Banowetz on September 25, when the attorney admitted that he had forgotten to send a letter but said he would do so. According to Banowetz, however, he did not hear from Edgmon until the last of October. Under the background circumstances the Trial Examiner believes the attorney's recollection to be the more accurate. (7) On November 2, Banowetz sent Edgmon the following letter: You requested a meeting with the management of the Dunn Packing Company for the purpose of negotiations of a labor contract between the Packinghouse Workers and Dunn. You also requested Mr. Marcus make himself available. I have contacted Mr. Marcus and he has advised me that Mr. Sargent and I are to represent him in negotiations and that he will not attend. As you will recall, some parts of the contract were agreed to and the company made a final offer which was not accepted by the union. The company main- tains the same position with regard to its last offer. Of course, we will meet with you on demand. However we would like your written proposal prior to the meeting. If the proposal exceeds the economic boundaries outlined in our last meeting, I am sure you realize it will not be acceptable to the company. I will await your further advice. (8) The Union did not reply to this letter. Edgmon conferred with Abe Free- man, union field representative, and Thomas, previously identified. According to Edgmon, they decided not to reply but to file an unfair labor practice charge because: We felt, according to the letter, that if we went ahead and said, "Yes, we will meet," we would be accepting the company's last proposal . . . . We had made them a package proposal sometime back and at that time we were still holding to our package proposal and we felt the company otherwise didn't want to meet at that time, the way the letter read. Also according to Edgmon , the Union submitted no written proposal, as suggested in the letter, because "the proposal we offered before we still stood on that." (9) Freeman, as a witness , explained the failure to meet as follows: We looked (the letter) over and I said. "We cannot meet with this guy on the conditions he laid down in the letter." He further explained: Our interpretation of the letter would be if we agreed to meet with him on the conditions of the letter, then, we had agreed to meet on the conditions we would accept his last proposal and the economic conditions of the contract, which to us we could not accept their last proposal on the economic conditions of the contract . . . . That is the only reason. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (10) Freeman said he had not "contacted anyone from the company to verify" his interpretation of the letter to the effect that had he met he would be "agreeing" to the company's position. C. Conclusions concerning this issue The foregoing findings, in the opinion of the Trial Examiner, do not warrant the conclusions sought by General Counsel. While the evidence does show that Banowetz, as negotiator for the Respondent, was something less than quick to respond to the overtures of Edgmon, it is equally clear that the union representatives exercised small promptitude in following up their requests. It is noted that the Union itself delayed filing its charge more than 6 weeks after receiving Banowetz' letter of November 2. Both parties appear to have been equally dilatory in action. The testimony of both Edgmon and Freeman establishes the fact that they are the parties who actually declined to meet, as Banowetz offered in his November 2 letter. Neither union representative apparently took the trouble to call Banowetz to see whether their interpretation of his letter was justified. The letter of November 2 and the testimony of the union representatives estab- lishes, it seems to the Trial Examiner, that the parties occupy precisely the same positions in impasse as they did in 1961 and that each party is aware of that fact. The law does not empower the Board to order either party to recede or make con- cession, as the Supreme Court pointed out in the American National Insurance Co. case, 343 U.S. 395. In his letter of November 2 Banowetz stated "Of course, we will meet with you on demand." The Union chose not to make that demand, a choice it was free to make. In short, the Trial Examiner believes and finds that the evidence in the record fails to sustain the 8(a)(5) allegations of the complaint. D. Alleged promise of benefits The complaint alleges and the answer denies that in January 1963, Plant Manager Taylor promised employees a pay raise if they "would get the Union decertified." The Trial Examiner finds no testimony in the record to support the allegation. Three witnesses were called by General Counsel on this point. None of them testified that Taylor conditioned a raise upon decertification. E. Conclusions in general The Trial Examiner concludes and finds that the evidence fails to sustain the allegations of unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. RECOMMENDATION Upon the foregoing findings and conclusions the Trial Examiner recommends that the complaint be dismissed in its entirety. Kane's Masterbuilt Furniture Co. and Upholsterers' Interna- tional Union of North America, AFL-CIO, Local 300. Cases Nos. 12-CA-0504 and 12-RC-1588. August 0, 1963 DECISION AND ORDER On May 17, 1963, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had not engaged in certain unfair labor practices as al- leged in the complaint, and recommending that the complaint be dis- missed in its entirety, as set forth in the attached Intermediate Report. He also recommended that various objections to conduct affecting the results of election, which were filed by the Union in Case No. 12-RC- 143 NLRB No. 112.